2000 (11) TMI 967 - AT - Customs

Appeal allowed pending evidence of product use in animal feed supplements.

The appeal was allowed, pending evidence of the product's use in making complete animal feed supplements within two months. - 2001 (138) E.L.T. 166 (Tri. ... Classification of animal feed supplements - medicaments (products for therapeutic or prophylactic use) - Explanatory Notes to the Harmonized System of Nomenclature - bulk imports versus products put up in measured doses for retail sale - remand for production and consideration of evidenceClassification of animal feed supplements - medicaments (products for therapeutic or prophylactic use) - bulk imports versus products put up in measured doses for retail sale - Explanatory Notes to the Harmonized System of Nomenclature - Classification of the imported Tylosin Phosphate: whether it is classifiable under heading 23.09 as a preparation for animal feed (feed supplement) or under heading 38.03 as a medicament. - HELD THAT: - The Tribunal found that the imported substance consists essentially of Tylosin (an antibiotic) with carriers, and the consignment was imported in bulk rather than as products put up in measured doses for retail sale. The Court rejected classification as a medicament under heading 38.03 because the product is not shown to be a preparation presenting two or more constituents mixed together for therapeutic or prophylactic use nor put up in measured retail doses. Relying on the Explanatory Notes to heading 23.09, the Tribunal observed that preparations used in making complete animal feeds or supplements (including those that improve digestion or ensure effective use of feed) fall under heading 23.09. The Collector's emphasis on the manufacturer's identity and the presence of an active antibiotic was held insufficient by itself to attract classification as a medicament; the tariff requirements and form/use of the product must be satisfied. [Paras 4, 5]Appeal allowed on the classification point: the product is not appropriately classifiable as a medicament under heading 38.03 on the material before the Tribunal; it may be classifiable under heading 23.09 if its use in making complete animal feed or as a feed supplement is established.Remand for production and consideration of evidence - Procedure to be followed for final classification - remand for verification and fresh consideration by the Commissioner. - HELD THAT: - The Tribunal directed that the appellant may produce evidence showing the product's use in making complete animal feed or as a feed supplement within two months. The Commissioner of Customs is required to consider the evidence and pass appropriate orders in accordance with the Tribunal's view. The matter of final classification is therefore remitted to the Commissioner for decision on the basis of the evidence to be produced; the Tribunal did not itself decide the factual question of actual use beyond the guidance given. [Paras 6]Remanded to the Commissioner to consider the evidence to be produced by the appellant within two months and to pass appropriate orders consistent with the Tribunal's view.Final Conclusion: The appeal is allowed insofar as the product is not sustained as a medicament on the material before the Tribunal; the product may be classified under heading 23.09 if evidence establishes its use in making complete animal feed or as a feed supplement. The appellant is directed to produce such evidence within two months and the Commissioner is remanded to consider it and pass appropriate orders. The judgment dealt with the classification of animal feed supplement for import. The product contained Tylosin, an antibiotic, and was classified under heading 23.09 for use in making animal feed supplements. The appeal was allowed, pending evidence of the product's use in making complete animal feed supplements within two months.